New York Superior Court, December, 1895. [Vol. 15. himself without explanation, or without a doctor's certificate, from the 1st of May until the 13th of July, 1889, on which day he came to the division engineer, and asked to be put to work; and it was not until that time, after several months of 'absence without an explanation, that he reported to the division engineer; we claim that is an abandonment." No proof had been given of any statute or rule which required a doctor's certificate, and the date given as the 13th day of July, 1889, was a mistake. It should have been the 13th day of July, 1888. Moreover, it was shown that the salary of the plaintiff for the month of April, 1888, had been paid. The case, therefore, as it appeared before the trial judge, simply presented the question whether the absence of the plaintiff from duty between the 1st day of May, 1888, and the 13th day of July, 1888, without an explanation at the time, constituted an abandonment of the office. It clearly did not as matter of law, for under the statutes of this state neglect of duty by an officer, absence from the place where the duties are to be performed, nonuser of powers or abandonment, are not modes of vacating an office, but, if unjustifiable, are grounds for removing him from office by the proper authority. But even if abandonment might be inferred conclusively from nonuser or neglect of duties, so as to amount in itself to an absolute vacation, without express renunciation of the office once lawfully held by the party, it could only be when the nonuser or neglect is not only total or complete, but of such continuance or under circumstances so clearly indicating absolute relinquishment as to preclude all future question of the facts. In the case at bar no such inference of abandonment could fairly be drawn, either by the trial judge or by the jury, because additional facts showed that on May 28, 1888, the plaintiff, on the advice of his physician, applied for leave of absence without pay, to commence June 1, 1888, which application was denied by the aqueduct commissioners; that he then reported for duty at least on July 13, 1888, if not Misc.] New York Superior Court, December, 1895. before, and announced his readiness to go to work, and was told by the division engineer that there was no place for him; that on his second visit he was told to see the chief engineer; that he saw the chief engineer, who told him to come back again and that he would see; that he continued to report to the chief engineer repeatedly thereafter and held himself in readiness to obey his orders, but was not assigned to duty, and that it was not until December 24, 1889, that he received notice that he was dismissed from the service. In view of these facts, and the chief engineer not having been called in contradiction, nor his nonproduction explained or accounted for, the defense of abandonment wholly failed. The plaintiff was not even suspended, as the fact was in Gregory v. Mayor, 113 N. Y. 416. Nor was there an agreement not to claim salary during nonperformance of duty, as the fact was in Emmitt v. Mayor, 128 N. Y. 117. In the case last referred to the Court of Appeals, speaking of the office of inspector of masonry, said: "The office of inspector being one created by the act, when filled, the incumbent became more than a mere ordinary employee or laborer engaged by the commissioners. Besides, it appears that his candidacy for the office must have been certified by a certificate from the civil service commission, and his qualifications further certified to by at least three of the aqueduct commissioners. Such an employee of the work cannot be classified or regarded as a temporary or occasional laborer. He fills an office with certain more or less responsibilities attached to it, and he becomes entitled to receive the compensation as it was fixed by the commissioners until they see fit to discharge him." For the foregoing considerations the plaintiff was entitled to the direction of a verdict, but the amount should not have exceeded the sum of $2,386.06. The record discloses no other error. Defendant's exceptions should be sustained, the verdict set aside and a new trial ordered, with costs to the defendant to abide the event, unless the plaintiff stipulates to reduce the New York Superior Court, December, 1895. [Vol. 15. verdict to $2,386.06, in which event defendant's exceptions will be overruled and judgment ordered for the plaintiff upon the verdict as reduced, without costs at the General Term. MCADAM and GILDERSLEEVE, JJ., concur. Exceptions sustained, verdict set aside and new trial ordered, with costs to defendant to abide event, unless plaintiff stipulates to reduce verdict to $2,386.06, in which event exceptions are overruled and judgment ordered for plaintiff on verdict as reduced, without costs. Matter of the Application of ERNEST T. HAEBLER, Respondent, for a Writ of Mandamus against THE NEW YORK PRODUCE EXCHANGE, Appellant. (New York Superior Court - General Term, December, 1895.) PRODUCE EXCHANGE - SUSPENSION OF MEMBER. The by-law of the New York Produce Exchange providing that a member may be censured, suspended or expelled if accused of a willful violation of the charter, fraudulent breach of contract, or any proceedings inconsistent with just and equitable principles of trade or other misconduct, does not authorize the board to suspend a member upon a complaint involving a mere failure to comply with the terms of a specified contract. APPEAL from order of the Special Term directing that a writ of peremptory mandamus issue to reinstate the petitioner as a member of the exchange. The petitioner was suspended by the board of managers of the defendant on a complaint charging him with "proceedings inconsistent with just and equitable principles of trade, as follows: Failure to comply with the terms and conditions of a contract for 8,000 barrels of Portland Cement, dated Jan. 22, 1895, partially delivered." The following is the opinion at Special Term: GILDERSLEEVE, J. The law, as laid down in the prevailing opinion in the case of People ex rel. Johnson v. N. Y. Produce Exchange, 8 Misc. Rep. 552, must control the Special Misc.] New York Superior Court, December, 1895. Term of this court until it shall have been disapproved by a higher tribunal. The complaint and proceedings in that case were practically the same as in the one before me, and the facts so nearly approach those herein disclosed that I feel constrained to regard it as a controlling authority in the matter of this application. In both cases the complaint charged "proceedings inconsistent with just and equitable principles of trade;" in the one case by "breach of" a specified contract, in the other by "failure to comply with the terms of " a specified contract. In both cases the board of managers proceeded, in regular conformity with the by-laws, to investigate the matter, and in both cases they concluded that the accused party had, in their opinion, been guilty of conduct. inconsistent with just and equitable principles of trade, and in both cases the accused was suspended in perfect accordance with the by-laws. The two cases, therefore, being practically identical, and the General Term of this court having decided, in the Johnson case, that the exchange was without jurisdiction to suspend the accused, I have no other alternative than to grant the application herein asked for. The application granted, with fifty dollars costs and disbursements to the applicant. Abel E. Blackmar, for appellant. Robert B. Honeyman, for respondent. Per Curiam. The order appealed from should be affirmed, with costs, upon the opinion at Special Term. Present: FREEDMAN and MCADAM, JJ. Supreme Court, April, 1895. [Vol. 15. WILLIAM R. STEWART et al., Plaintiffs, v. THOMAS F. KEAT ING et al., Defendants.* (Supreme Court - New York Special Term, April, 1895.) POWER OF APPOINTMENT EXECUTION OF. An appointment under a power is an intent to appoint carried out, and if made by will the intent and its execution are to be sought for through the whole instrument. 2. SAME. Where the donee of a power to dispose of property by will, who owns in his own right other property of substantial value, executes a will which in no manner refers to the power and contains provisions inconsistent with the manifest purposes of the donor of the power, and the language of the donee's will is entirely satisfied by applying the same to his individual property, without reference to the estate to which the power of appointment is attached, and without contravening the purposes of the donor, the nonexistence of an intent on the part of the donee to exercise the power conferred is established. 3. SAME. A power of appointment limited to the execution of a devise or bequest to the lineal descendants of the donor of the power does not authorize the creation of a trust for the benefit of certain of his lineal descendants for life, with provisions which would operate as a devise of the estate to his collateral relatives in a certain contingency. ACTION for partition. Bowers & Sands (John M. Bowers, of counsel), for plaintiffs. Robert C. Cornell, guardian ad litem. Francis C. Huntington, for defendants Thomas H. Rhinelander et al. MARSHALL, Referee. The rights of the parties to this litigation depend upon the determination of the question as to whether or not it was the intention of Julia Rhinelander to execute the power of appointment conferred upon her by the will of her father, William C. Rhinelander, and, if so, whether the attempted execution was valid and operative. * Published by request.-[REPORTER. |